Solomon v. Liquor Control Commission

• Decision Date: 01 December 1965
• Docket Number: No. 39213,39213
• Citation: 212 N.E.2d 595,33 O.O.2d 339,4 Ohio St.2d 31
• Parties: , 33 O.O.2d 339 SOLOMON, d. b. a. Brooksy's Bar, Appellee, v. LIQUOR CONTROL COMMISSION, Appellant.
• Court: Ohio Supreme Court

Page 31

4 Ohio St.2d 31

212 N.E.2d 595, 33 O.O.2d 339

SOLOMON, d. b. a. Brooksy's Bar, Appellee, v. LIQUOR CONTROL COMMISSION, Appellant.

No. 39213.

Supreme Court of Ohio.

Dec. 1, 1965.

Rehearing Denied Dec. 22, 1965.

Syllabus by the Court

1. One engaging in the dispensing and sale of alcoholic beverages is required by statute to secure a permit from the state to carry on such business and is subject to the provisions of the Liquor Control Act in the conduct thereof.

2. Section 4301.10, Revised Code, sets forth the powers and duties of the Department of Liquor Control and provides, inter alia, that it shall control the traffic in beer and intoxicating liquor, including the sale thereof, enforce the laws pertaining thereto, inspect upon demand the place of business of any permit holder, delegate to its agents any powers of investigation which the department itself possesses and exercise all other powers expressly or by necessary implication conferred on it by the laws governing the dispensing and sale of alcoholic beverages.

3. Section 4301.68, Revised Code, a measure designed to protect the purchasers and consumers of alcoholic beverages, expressly prohibits any person from selling, offering for sale or possessing intoxicating liquor in any original container which has been diluted, or which container has been refilled or partly refilled.

4. One who applies for and is issued a permit to sell intoxicating beverages thereby subjects himself to the provisions of the Liquor Control Act and assents to the reasonably exercised inspection and examination by the agents of the Department of Liquor Control of his permit premises, including bottled intoxicants which he possesses and offers for sale thereon, and a removal of bottles of intoxicants from the permit premises by such agents for examination and testing in a state laboratory to determine whether they comply with lawful requirements is authorized by the provisions of the Liquor Control Act.

5. Section 4301.68, Revised Code, in its wording does not require scienter or guilty knowledge on the part of one who is affected thereby.

6. Where a permit holder is charged with a violation of Section 4301.68, Revised Code, the contents of the bottles of intoxicants lawfully taken from his premises by agent of the Department of Liquor Control, which, when analyzed and laboratory tested by a state chemist, are found to be deficient and violative of the provisions of such statute, are admissible in evidence at the hearing provided by statute before the Liquor Control Commission, wherein the matter for determination is the suspension or revocation of the permit.

This matter had its origin before the Ohio Liquor Control Commission when appellee herein, Betty Solomon, operating 'Brooksy's Bar' in the city of Cleveland under a permit, was charged with a violation of Section 4301.68, Revised Code, in the following language:

'On August 14, 1961, you did possess in and upon the permit premises, intoxicating liquor in an original container which had been diluted, refilled, or partially refilled--in violation of the provisions of the Liquor Control Act.'

The applicable statute itself, a part of the Liquor Control Act, reads:

'No person shall sell, offer for sale, or possess intoxicating liquor in any original container which has been diluted, refilled, or partly refilled.'

Appellee denied the charge.

At the hearing before the commission, it was stipulated and agreed by opposing counsel that, if two designated agents of the Department of Liquor Control were called to testify, they would state that on Monday, August 14, 1961, they entered appellee's permit premies and informed her that they intended to remove several bottles of spirituous liquor (whiskey) from the back bar for analysis by the state chemist to determine whether they had possibly been refilled.

Several bottles of liquor were taken by the agents (apparently without objection or protest) and sealed on the premises, and a receipt therefor, signed by the two agents and by the appellee, was given to appellee. These bottles of whiskey were delivered by the agents on the same day to the Cleveland district office of the Department of Liquor Control, where, later, a state chemist picked them up, still sealed, and took them to Columbus for analysis.

In the following December, the same two agents returned to appellee's place of business and delivered to her a citation, charging her with a refilling of the appropriated bottles of whiskey.

Before the hearing, counsel for appellee filed a written motion with the commission to the effect that no evidence be introduced at the hearing, and that the whiskey bottles and their contents be excluded for the reason that they were illegally obtained under the holding of the Supreme Court of the United States in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 N.Ed.2d 1081.

This motion was overruled, as was a similar 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. taking of evidence.

Called as a witness by appellant was a state chemist, whose qualifications were admitted. He stated that upon chemical analysis all the appropriated whiskey, except one bottle, showed an appreciably lower proof--alcoholic strength--than that appearing on the bottle labels. He testified further that in his opinion, based on experience, the reduced proof was attributable to refilling the bottles with lower-proof whiskey or by diluting the contents with water. Such testimony was not objected to, and appellee introduced no evidence.

The commission sustained the charges and issued an order revoking appellee's permit.

An appeal to the Court of Common Pleas of Franklin County resulted in an affirmance of the commission's order, but, on further appeal to the Court of Appeals, that court by a two-to-one reversed the judgment of the lower court, vacated the order of the commission and returned the cause to the commission for further proceedings 'according to law and the decision of this court.'

In its judgment entry, the Court of Appeals said in part:

'The court * * * finds that, because of a complete lack of statutory authority for the seizure and confiscation of the bottles of intoxicating liquor * * * the admission of those exhibits in evidence at the hearing before the Liquor Control Commission was error and, consequently, the order of said commission is not in accordance with law.'

Allowance of the appellant's motion to require the Court of Appeals to certify the record to this court places the cause here for review and decision.

Leonard J. Stern, Isadore Topper, Columbus, and Fred W. Garmone, Cleveland, for appellee.

William B. Saxbe, Atty. Gen., and James E. Rattan, Columbus, for appellant.

ZIMMERMAN, Judge.

In approaching a decision in this case, it is of importance to consider the nature of the liquor business, particularly as it here relates to the dispensing and sale of intoxicating liquor at retail by the glass. Because of the harmful potentialities incident to the conduct of such business, those engaging therein must obtain a permit from the state and are thereafter subject to strict regulation by statute and by rules and regulations adopted and promulgated pursuant to statutory authority by the Department of Liquor Control, the regulating and...